Tag Archives: Fourth Amendment

The Dictionary and the Database: Thoughts on State v. Emerson

Last week, the Supreme Court of Ohio held that the state may use, in a completely unrelated case, information derived from a DNA sample acquired pursuant to a search warrant without seeking a new warrant. This result is not novel–indeed, a contrary outcome would have departed from the law elsewhere.

Nevertheless, the opinion in State v. Emerson presents a new wrinkle. After Dajuan Emerson was acquitted of the 2005 rape of a 7-year-old girl, his DNA profile somehow resided in the state’s convicted-offender database. Then, in 2007, 37-year-old Marnie Macon was stabbed 74 times in her apartment. (Ludlow 2012). Police recovered blood from a door handle. The DNA profile from this crime-scene sample (often called a “forensic sample”) was run against the state database. It matched Emerson’s profile from 2005. After the trial court denied a motion to suppress this match, the case went to trial and the jury found Emerson guilty of aggravated murder (and tampering with evidence). An Ohio District Court of Appeals affirmed, and the state supreme court affirmed that judgment.

The obvious questions are why the 2005 profile entered the convicted-offender database and whether the Fourth Amendment’s exclusionary rule for unreasonable searches or seizures applies to the resulting cold hit. The Ohio Supreme Court’s analysis of these issues is a little odd. I shall quickly run through the opinion, indicating the oddities.

What is an allele?

The first peculiarity is ultimately of no moment, but I’ll mention it anyway because it shows the continuing inability of too many judges (or the recent law school graduates who are their clerks) to consult suitable scientific references. According to the opinion, “[a] DNA profile consists of a series of numbers that represent different alleles that are present at different locations on the DNA” and “[a]n allele is defined as ‘either of a pair of genes located at the same position on both members of a pair of chromosomes and conveying characters [sic] that are inherited in accordance with Mendelain [sic] law.’ Webster’s New World Dictionary, Third College Edition 36 (1988).”

The alleles used in modern DNA databases are not parts of genes. (Well, some of them are meaningless variations within introns, but even those do not “convey characters” as the classical definition from Webster’s would require.) Perhaps judges should not be criticized for thinking that the word “allele” always refers to genes. To denote variations in DNA sequences that are not the allelotypes of genes, forensic scientists themselves borrowed from the terminology for genes, inviting such confusion. (Kaye 2010). But there are many reasonably accurate explanations of forensic STR “alleles” in the legal and forensic science literature. Consequently, there is little excuse using the inapt dictionary definition. Fortunately, this error does not affect anything else in the opinion.

How did Emerson’s DNA profile get into a CODIS database?

The justices evinced little concern about the statutory violation that led to the fateful match in the case. In fact, the unanimous opinion prominently denies that putting the profile of someone who was not convicted into the state and national databases (SDIS and NDIS) for future trawls departed from Ohio’s convicted-offender law.

The court reached this counter-intuitive result by relying on Black’s Law Dictionary:

Appellant is correct that R.C. 2901.07 does not support the inclusion of his profile in CODIS. However, the same cannot be said for R.C. 109.573. The superintendent of BCI is empowered to “establish and maintain a DNA database.” R.C. 109.573(B)(1)(b). “DNA database” is defined in part as “a collection of DNA records from forensic casework.” R.C. 109.573(A)(3). “Forensic” is defined as “[u]sed in or suitable to courts of law or public debate.” Black’s Law Dictionary 721 (9th Ed.2009). In this case, the police lawfully obtained the DNA sample in the course of the 2005 rape investigation. Therefore, the profile obtained from the sample is a record from forensic casework and is properly maintained in CODIS. Moreover, we note that neither R.C. 109.573 nor 2901.07 require that the state, on its own initiative, remove the DNA profile of a person who was acquitted at trial.

Again, the failure to consult relevant sources for the actual terminology in the field is a gross mistake. Ohio Revised Code � 109.573(3) defines “DNA database” as

a collection of DNA records from forensic casework or from crime scenes, specimens from anonymous and unidentified sources, and records collected pursuant to sections 2152.74 and 2901.07 of the Revised Code and a population statistics database for determining the frequency of occurrence of characteristics in DNA records.

(This is the current version. I am assuming the words are the same as they were in 2007.) The “records collected” under the enumerated sections pertained to “adjudicated delinquents” and to convicted offenders–not to mere suspects. The phrase “forensic casework or crime-scene samples” refers to DNA of unknown origin–from vaginal swabs, clothing, property, etc. As the FBI explains, “the DNA data that may be maintained at NDIS [consists of profiles from] convicted offender, arrestees, legal, detainees, forensic (casework), unidentified human remains, missing persons and relatives of missing persons.” (FBI, undated). There is no authorized category for sundry individuals whose DNA profiles have become known to the police for miscellaneous reasons. Ohio did not take DNA samples from arrestees or detainees until 2011. Under the Emerson court’s peculiar reading of the statute, police in Ohio could use the “abandoned DNA” ploy to acquire a profile from a person even without a warrant and upload it to the state and national databases.

The court’s theory that the Ohio legislature used the phrase “forensic casework” to cover every sample and profile “[u]sed in or suitable to courts of law or public debate” is astonishing. A convicted-offender database system has one set of so-called “forensic” profiles (that could link perpetrators to crimes) and another set of convicted-offender profiles (who might be found to be the perpetrators of the unsolved solves). The “forensic” profiles come from the unknown perpetrators of the crimes. They can be matched, if possible, against the convicted offenders’ profiles (and among one another to identify serial crimes). Neither they nor the convicted-offender database was intended to house profiles from specific suspects who never were found guilty of a qualifying crime. Thus, the state had no convincing legal basis for uploading Emerson’s profile to SDIS and NDIS–and the court should not have approved of such misconduct.

Nonetheless, the statutory violation does not justify excluding the cold hit under the Fourth Amendment. The U.S. Supreme Court has not been kind to the exclusionary rule in recent years. As Emerson observes, it has held that a violation of a state statute does not make a search constitutionally unreasonable.

Did Emerson lack standing to complain of a Fourth Amendment violation?

The Emerson opinion contains a third error. The court holds “that a person does not have standing to object to the retention of his or her DNA profile or to the profile’s use in a subsequent criminal investigation.” This misrepresents the meaning of “standing.” In the Fourth Amendment context, the standing requirement bars “attempts to vicariously assert violations of the Fourth Amendment rights of others.” United States v. Salvucci, 448 U.S. 83, 86 (1980). Thus, in Salvucci, police searched an apartment rented by a defendant’s mother and found checks that her son had stolen from the mails. In his prosecution for possession of stolen mail, the son lacked standing to complain the search violated the mother’s interest in the privacy of her apartment.

In Emerson, the defendant never argued that the cold hit violated someone else’s rights. He argued that it violated his right to be free from unreasonable searches because he had a legitimate expectation of privacy in his DNA profile retained by the state. He surely had standing to raise that claim, and the court references to “standing” are superfluous and confused.

Was the retention of the profile and the trawl of the database a search or seizure?

At last, we come to the dispositive issue in the case–was any Fourth Amendment interest of Emerson’s violated by the retention of his profile and the trawl of the database? The court held–correctly, I believe–that Emerson had no such interest. The state acquired the DNA sample in 2005 pursuant to a search warrant of unchallenged validity. Laboratory analysis of the sample was not a separate search, but the very reason for the search warrant. Simply keeping the identifying profile and looking to see whether it matched new profiles in the “forensic index,” as the FBI calls them, does not rise to the level of new search. Once the government legitimately acquires information pursuant to a search warrant, it need not toss out and forget about that information if it cannot secure a conviction. In later investigations and prosecutions, it can use what it finds in the fully authorized and entirely legitimate search.

Obviously, the situation would be otherwise if the original search were unreasonable. Then the evidence should be excluded to vindicate the defendant’s right to be free from unreasonable searches and seizures. But it would be worse than pointless to exclude, on constitutional grounds, legitimately acquired evidence of guilt. This is the sound core of the reasoning in Emerson. Whether the defendant was acquitted in the case that generated the search warrant, whether  he was convicted then, or whether he never was prosecuted in that case makes no difference. There is no constitutional reason to exclude evidence from a reasonable search.

In Boroian v. Mueller, a case that Emerson overlooks, the U.S. Court of Appeals for the First Circuit held that continued trawls of a database may continue even after an offender has completed his sentence. Emerson extends the reasoning of Boroian to an individual whose DNA profile should not have been in the database in the first place. But because the objection in that respect is entirely statutory, it does not change the result.

Of course, one can question the conclusion that trawling a database is not a separate search, and some commentators as well as some recent opinions on the constitutional of pre-conviction DNA sampling, analysis, and trawling have spoken of different steps in the process as if they were independent searches, each of constitutional magnitude. For reasons stated in Kaye (2011), however, I doubt that these claims are tenable. Despite the terminological and conceptual flaws in the opinion in Emerson, the Ohio Supreme Court reached the correct result.

References

United States v. Salvucci, 448 U.S. 83, 86 (1980)

Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010)

State v. Emerson, No. 2011-0486 (Ohio Nov. 1, 2012) (Slip Opinion No. 2012-Ohio-5047)

FBI, Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA Index System, http://www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet.

David H. Kaye, The Double Helix and the Law of Evidence (2010)

David H. Kaye, DNA Database Trawls and the Definition of a Search in Boroian v. Mueller, 97 Va. L. Rev. in Brief 41 (2011)

Randy Ludlow, Ohio Suspects’ DNA Can Be Saved for Later Cases, Court Rules, Columbus Dispatch, Nov. 6, 2012

Cross-posted to Forensic Science, Statistics, and the Law.

The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard

Note: This scorecard has been superseded. Please check for later editions.

Fifteen years ago, Louisiana adopted a law mandating that “[a] person who is arrested for a felony sex offense or other specified offense . . . shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.” Today, the movement to acquire DNA from individuals not convicted of a crime and to check it against state and national databases of DNA profiles from unsolved crimes is snowballing. As of early 2012, 26 states and the federal government had laws providing for DNA sampling before any conviction is obtained. Most other countries with DNA databases also collect samples on arrest.

The DNA-on-arrest laws in the U.S. had a placid childhood, with surprisingly few challenges to their constitutionality. This period of calm is over. Conflicting opinions are emerging on the reasonableness of these searches under the Fourth Amendment. Within the next few years, it seems likely that, as Kansas State Representative Pat Colloton (R), who authored the bill that initiated her state’s DNA sampling program predicted, “this issue will go to the United States Supreme Court.” (Gramlich 2006). In fact, if U.S. Supreme Court Chief Justice Roberts has his way, the Court will take up the issue in its 2012-2013 Term.

This posting presents a scoreboard on the litigation and scholarly commentary to date. If any players or contests have been omitted, I hope that readers will correct those omissions by leaving a comment. The law review articles listed in the table do not include ones on the constitutionality of convicted-offender databases. Authors who have contended that these databases are unconstitutional would reach the same conclusion for a database that includes arrestees, but the lower courts have resoundingly rejected their analyses. Therefore, little would be gained by keeping track of the many articles on convicted-offender databases.

The tables make the point that as yet there is no consensus on the constitutionality of taking DNA samples during a custodial arrest with the intention of running database searches (in the absence of a warrant and probable cause to believe that the search will produce a hit in the database).


Table 1. Case law (as of August 17, 2012)

Appellate: State Supreme Courts (1.5-1.5)

  • Mario W. v. Kaipio, Commissioner, No. CV-11-0344-PR (Ariz. June 27, 2012) (state arrestee law for juveniles constitutional insofar as it allows sampling as a booking procedure, but pre-conviction analysis of the sample is unconstitutional under a totality-of-the-circumstances standard and an analogy to searching containers)
  • King v. State, 42 A.3d 549 (Md. 2012) (state arrestee law unconstitutional “as applied” under “totality of the circumstances” balancing test), pet.for cert. filed, Aug. 14, 2012
  • Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007) (state arrestee law upheld under unspecified balancing test and analogy to fingerprinting as a booking procedure)
  • Related case: State v. Franklin, 76 So.3d 423 (La. 2011) (no search warrant was required to take a DNA sample from a murder defendant for use in the murder investigation because he had to submit a sample “as a routine incident of booking” anyway)

Appellate: State Intermediate Courts (opinions not reviewed by higher courts) (0-2)

  • People v. Buza, 129 Cal.Rptr.3d 753 (Cal. Ct. App. 2011) (unconstitutional under balancing tests), rev. granted, 262 P.3d 854 (Cal. 2011)
  • In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006) (state arrestee law struck down as per se unreasonable without probable cause and a warrant)

Appellate: Federal Courts (2-0)

  • United States v. Mitchell, 652 F.3d 387 (3d Cir. 2011) (en banc) (federal arrestee law upheld under “totality of circumstances” balancing test)
  • Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012) (state arrestee law upheld under “totality of circumstances” balancing test), reh’g en banc granted, 2012 WL 3038593 (July 25, 2012)
  • United States v. Pool, 621 F.3d 1213 (9th Cir. 2010) (federal arrestee law upheld under “totality of circumstances” balancing test), vacated as moot, 659 F.3d 761 (9th Cir. 2011) (en banc)
  • Related case: Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009) (an arrest does not justify DNA sampling without an applicable statute)

Trial Courts: Federal (not reviewed by higher courts) (1-1)

  • United States v. Thomas, No. 10-CR-6172 CJS, 2011 WL 1627321 (W.D.N.Y. Apr. 27, 2011) (federal arrestee law upheld under “special needs” balancing test), dismissed, No. 11-1742 (2d Cir. Sept. 20, 2011), ECF No. 43.
  • Amended Order Denying the Government’s Motion to Compel DNA Samples, United States v. Frank, No. CR-092075-EFS-1(E.D. Wash. Mar. 10, 2010), available at http://www.dnaresource.com/documents/USvFrank.pdf (applying totality balancing to a limited list of interests to find compulsory collection before conviction unreasonable)
  • Related case: United States v. Purdy, No. 8:05CR204, 2005 WL 3465721 (D. Neb. 2005) (forcibly taking a buccal swab from an arrestee violates Fourth Amendment in the absence of a statute providing for a uniform and limited system of sampling)

Trial Courts: Federal (reviewed by higher courts) (2-1)

  • United States v. Mitchell, 681 F.Supp.2d 597 (W.D.Pa. 2009) (federal law held unenforceable), rev’d, 652 F.3d 387 (3d Cir. 2011) (en banc)
  • United States v. Pool, 645 F.Supp.2d 903 (E.D.Cal. 2009) (federal arrestee law upheld under “totality of circumstances” balancing test), aff’d, 621 F.3d 1213 (9th Cir. 2010), affirming opinion vacated as moot, 659 F.3d 761 (9th Cir. 2011) (en banc)
  • Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009) (denying a preliminary injunction against the enforcement of California’s arrestee sampling law in large part because the balance of interests establishes that the requirement is reasonable), aff’d sub nom. Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012)


Table 2. Law Review Articles and Notes (as of August 17, 2012)

Faculty

  • D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol’y 455-508 (2001) (a statute with sufficient protections of private, nonidentifying information is constitutional under the special needs exception)
  • Tracey Maclin, Is Obtaining an Arrestee’s DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?, 34 J.L. Med. & Ethics 165, 178-82 (2006) (predicting that the Supreme Court will uphold taking DNA from arrestees under a balancing test but that it should reject the practice as per se unreasonable)
  • D. H. Kaye, Who Needs Special Needs? On the Constitutionality of Collecting DNA and Other Biometric Data from Arrestees, 34 J.L. Med. & Ethics 188 (2006) (proposing a “biometric information exception” to the warrant requirement)
  • Brian Gallini, Step Out of the Car: License, Registration, and DNA Please, 62 Ark. L. Rev. 475 (2009) (Arkansas law unconstitutional because it does not require a judicial finding of probable cause arrest, contains inadequate safeguards to protect the samples and records, and because it does not fall within an established exception to the warrant requirement)
  • Kevin Lapp & Joy Radice, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, 90 N. Car. L. Rev. Addendum 157 (2012) (pre-conviction DNA extraction should be permitted only after a neutral third-party finding of probable cause and DNA samples should be destroyed)
  • —, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection,
    91 N.C. L. Rev. Addendum No. 1 (forthcoming 2012
  • David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, U. 15 Pa. J. Const. L. No. 4 (forthcoming 2013)
  • Related article: Robert Molko, The Perils of Suspicionless DNA Extraction of Arrestees Under California Proposition 69: Liability of the California Prosecutor for Fourth Amendment Violation? The Uncertainty Continues in 2010, 37 W. St. U. L. Rev. 183 (2010) (reaching no conclusions)

Student

  • Martha L. Lawson, Note, Personal Does Not Always Equal “Private”: The Constitutionality of Requiring DNA Samples from Convicted Felons and Arrestees, 9 Wm. & Mary Bill Rts. J. 645 (2001) (the government’s interest in mandatory testing of all those arrested outweighs individuals’ privacy interests)
  • Rene� A. Germaine, Comment, “You Have the Right to Remain Silent. . . You Have No Right to Your DNA” Louisiana’s DNA Detection of Sexual and Violent Offender’s Act: An Impermissible Infringement on Fourth Amendment Search and Seizure, 22 J. Marshall J. Computer Info. L. 759 (2004) (unconstitutional under balancing test other than special needs)
  • Robert Berlet, Comment, A Step Too Far: Due Process and DNA Collection in California after Proposition 69, 40 U.C. Davis L. Rev. 1481 (2007) (with certain modifications, arrestee DNA sampling as provided for under California law would be constitutional)
  • John D. Biancamano, Note, Arresting DNA: The Evolving Nature of DNA Collection Statutes and Their Fourth Amendment Justifications, 70 Ohio St. L.J. 619 (2009) (unconstitutional under special needs and totality of the circumstances tests)
  • Corey Preston, Note, Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling, 19 Wm. & Mary Bill Rts. J. 475 (2010)
  • Ashley Eiler, Note, Arrested Development: Reforming the Federal All-Arrestee DNA Collection Statute to Comply with the Fourth Amendment, 79 Geo. Wash. L.Rev. 1201, 1220 (2011)
  • Lauren N. Hobson, Note, North Carolina’s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010, 89 N.C. L. Rev. 1309 (2011) (unconstitutional because no existing exception to the Warrant Clause applies)
  • Kimberly A. Polanco, Note, Constitutional Law-The Fourth Amendment Challenge to DNA Sampling of Arrestees Pursuant to the Justice for All Act of 2004: A Proposed Modification to the Traditional Fourth Amendment Test of Reasonableness, 27 U. Ark. Little Rock L. Rev. 483 (2005) (constitutional under a balancing test)
  • Related note: Jacqueline K. S. Lew, Note, The Next Step in DNA Databank Expansion? The Constitutionality of DNA Sampling of Former Arrestees, 57 Hastings L.J. 199 (2005) (unconstitutional as applied to “former arrestees”)


References

John Gramlich, States Collecting DNA from Arrestees, July 27, 2006, http://www.stateline.org/live/details/story?contentId=129960, accessed Nov. 28, 2009

Martin Kaste, Wash. Lawmakers Fight for DNA Sampling at Arrest, All Things Considered, Feb. 28, 2012, http://www.npr.org/2012/02/28/147225828/wash-lawmakers-fight-for-dna-sampling-at-arrest, accessed Aug. 17, 2012

15 La . Rev. Stat. � 609(A)(1) (“A person who is arrested for a felony sex offense or other specified offense, including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses on or after September 1, 1999, shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.”), derived from Act No. 737, approved July 9, 1997, and amended in 2003 (adding the phrase “including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses”)

MDNA

According to Wikipedia, “MDNA may refer to

Mitochondrial DNA (mDNA or mtDNA), the DNA located in organelles called mitochondria MDNA (album), a 2012 album by Madonna
MDNA Tour, 2012 concert tour by Madonna”

Additional research reveals an unexpected relationship between the first and third expansions of the acronym. If Madonna has anything to say about it, her fans seeking unusual souvenirs will have neither mDNA nor any other DNA from the aging pop star on the MDNA tour. She has a “sterilization team” to extirpate any DNA in her dressing room after shows. In fact, the team is concerned with much more than DNA. They remodel the dressing room to include “fake ceilings and fake walls, so they can ensure that no one has hidden a camera somewhere.” [1] No “genetic exceptionalism” here.

I have heard that the Secret Service collects the plates, silverware, and drinking glasses or cups the President uses when he is on tour.

How about the rest of us? Do we have a reasonable expectation that police will not collect our shed DNA? No court has held that the investigative technique is a search within the meaning of the Fourth Amendment.

References

1. Bang Showbiz, Madonna Has DNA Cleaning Team for Tour, Winnipeg Free Press, June 22, 2012

The Arizona Supreme Court Adopts a No-Peeking Rule for Juvenile Arrestee DNA

Preface: This posting (of June 29) replaces one from June 28. Part of that initial discussion of the Arizona Supreme Court’s opinion was, I think, unwarranted. In particular the criticism of the court’s treatment of the state interests may not have been accurate. Complex opinions, like good literature, rarely can be fully grasped on a first reading.

* * * A few days ago, the Supreme Court of Arizona promulgated a creative “don’t peek” rule for DNA samples routinely taken from juveniles before a finding of delinquency. Justice Andrew Hurwitz (who has just moved to the U.S. Court of Appeals for the Ninth Circuit) penned the unanimous opinion in Mario W. v. Kaipio, Commissioner, No. CV-11-0344-PR (Ariz. June 27, 2012). The opinion injects some new ideas and analysis into the legal controversy over arrestee DNA sampling, but I have to question whether the reasoning is sufficient to support the result the court reaches and to ask how far the court’s theory of Fourth Amendment privacy extends.

At the outset, the Arizona court quite properly sets out the normal rule that Fourth Amendment reasonableness requires a warrant and probable cause unless a categorical exception to these requirements exists. But then the court states that “[t]he parties do not dispute the applicability of the totality of the circumstances test, and we therefore analyze the Arizona scheme under that rubric.” This is hardly a ringing endorsement of this mode of analysis, but it is the way most courts approach the issue [1].

Getting to the specifics of DNA sampling on arrest, the court observes that there are “two separate intrusions” and “two searches — ‘the physical collection of the DNA sample’ and the ‘processing of the DNA sample.'” The former observation is basically correct. “The seizure of buccal cells is a physical intrusion, but does not reveal by itself intimate personal information about the individual.”1/

But the laboratory analysis probably is not a “later search.” The U.S. Supreme Court, at any rate, has yet to hold that physical testing or inspection is a separate search simply because it produces information about the substance being analyzed. Indeed, the Court, in two opinions–United States v. Edwards, 415 U.S. 800 (1974), and United States v. Jacobsen, 466 U.S. 109 (1984)–has held the opposite.

The Arizona court relies on an analogy to containers. It maintains that human cells are like steamer trunks or purses that contain private possessions. The police engage in a search when they open such a container and rummage through its contents.

The analogy looks good at first blush. People surely have reasonable expectations of privacy in the contents of their luggage and their purses. The Orthodox Jew on Yom Kippur with an apple core in her purse, the Catholic juvenile with birth control pills in hers, and the English literature professor with sleazy novels in his trunk all have a fair claim to freedom from unregulated intrusions into their purses or luggage. The police will all but inevitably espy these legal but embarrassing items if they look through the container without a warrant.

But compare this with the laboratory analysis of the epithelial cells. The laboratory extracts a single kind of molecule–DNA. It does not look at the rest of the cell. Within the DNA, it looks at a tiny fraction of the genome–locations (“loci”) that are not potentially embarrassing (except insofar as they match crime-scene samples).1/ The situation begins to resemble cases in which dogs that (supposedly) alert only to drugs are used to sniff luggage–and that, the Court has twice held, is not a search.2/

Because the government does not look through the parts of genome in which an individual has a strong expectation of privacy, a better analogy is required. Imagine, then, that every time a person commits a crime, a mysterious being delivers an envelope to the police that always contains only two things–a card with the name of an individual who was at the scene of the crime (but not necessarily at the time the crime occurred) and a key to a safe deposit box in that person’s name. Is opening the envelope a “search” that triggers the need for a warrant or an exception to the warrant requirement? Maybe, but the cases and the doctrine cited in Mario W. are insufficient to establish this result. All that the container cases establish is that the police must abide by the constitutional requirements for searches before and when they use the key to open the safe deposit box. The box, of course, is the vast part of the human genome that the police do not open in DNA testing for identity. In DNA profiling for law enforcement databases, they only read the name on the card.3/

Yet, whether one denominates the laboratory analysis as a separate search is not decisive. It might be a constitutionally permissible, warrantless, probable-causeless search, at least under the totality-of-the-circumstances balancing test. The Arizona justices reject this conclusion in favor of the following rule: (1) the state’s “important interest in locating an absconding juvenile and, perhaps years after charges were filed, ascertaining that the person located is the one previously charged” justifies collecting the sample–“even if a formal judicial determination of probable cause was not made at the advisory hearing.” However, (2) no combination of state interests justifies the warrantless laboratory analysis of the DNA sample (a) to determine whether it matches unsolved crime samples or (b) to have a profile in a database that will identify the juvenile as the contributor of DNA found in future crimes.

But why is taking DNA solely for “locating an absconding juvenile” so critical when the state already takes fingerprints that can be used this purpose? Doesn’t the fingerprint on file eliminate the need to house the DNA as well, as the Maryland Court of Appeals recently reasoned in King v. State, 42 A.3d 549 (Md. 2012)?

The Arizona court’s answer is that “[o]ne arrested for a serious crime may be fingerprinted before a judicial determination of probable cause. … A judicial order to provide a buccal cell sample occasions no constitutionally distinguishable intrusion.” This suggests that the state can choose either fingerprints or DNA as the source of identifying marks. However, if a DNA profile is “intimate personal information about the individual” merely because it constitutes “uniquely identifying information”–which is all that Mario W. says about informational privacy–then fingerprints are equally “intimate personal information.” They too provide “uniquely identifying information.” Indeed, they are better for this purpose, for they permit differentiation of identical twins.

So does Mario W. prohibit the state from examining the minutiae in fingerprints unless or until arrestees are convicted (the no-peeking rule)? From running an arrestee’s print against a database of prints from unsolved crimes? From adding the fingerprint to the national Automated Fingerprint Identification System database (AFIS) before that point? Of course, DNA loci might be significantly more threatening to privacy than fingerprint details, but that conclusion is far from obvious [1].

In analyzing the state’s interests in pre-conviction DNA analysis, the opinion correctly notes that the value in solving unrelated crimes (and in deterring future ones) is reduced considerably by two features of the Arizona law. As with all pre-conviction profiling and databasing, many of the arrestees would have their samples analyzed and included in the state database after they are convicted anyway. As for the ones who are not convicted, the Arizona law does not permit continued use of the profiles. Thus, the opinion notes, with current technology and staffing, the government has the benefit of the profiles for only a month or so (for those who not adjudicated delinquent) and for only an extra month or so for the others.

These points help explain the court’s balancing, but how enduring are they? Advances in technology, making it possible to analyze profiles in a matter of hours, easily could extend the period of pre-conviction use. In addition, what would happen if the law did not require the samples to be removed from the database in the event that the state does not prove delinquency? Obviously, that would advance the state’s law enforcement interests (although it might not be politically popular). The sad fact is that lots of people who are arrested but never convicted commit later crimes. If DNA is to be believed, California’s “Grim Sleeper” killer is one. Lives would have been saved had his profile been acquired at his first of sixteen arrests and kept in a state database. Of course, the mere fact that law enforcement could gain by keeping tabs on more people does not make all such practices constitutional. Still, it adds something to the state’s interests that is missing in the Arizona system of juvenile arrestee DNA databasing and that would have to be considered in totality balancing for the more extended system.

Interestingly, the Mario W. court intimates that expungement is mandatory “given the constitutional presumption of innocence” and the fact that those accused of crimes “do not forfeit Fourth Amendment protections.” This part of the opinion raises several puzzles. Given the history and cases on the presumption of innocence, it is an expansive reading of the presumption [2]. Moreover, if the presumption does mean that the state may not include DNA profiles of those arrested but not ultimately convicted in databases, what of fingerprints, which are retained indefinitely? As noted earlier, the court’s theory as to why DNA profiling invades informational privacy seems to apply with equal force to AFIS databases. That people do not forfeit Fourth Amendment rights just because they are accused of crimes–or, for that matter, convicted of them–is important, but it does not imply that the Fourth Amendment is an absolute barrier to suspicionless profiling and databasing. The opinion asserts that

[O]ne accused of a crime, although having diminished expectations of privacy in some respects, does not forfeit Fourth Amendment protections with respect to other offenses not charged absent either probable cause or reasonable suspicion. An arrest for vehicular homicide, for example, cannot alone justify a warrantless search of an arrestee’s financial records to see if he is also an embezzler.

As with the purse and the trunk, the financial records of the arrestee merit strong Fourth Amendment protection (unless, according the U.S. Supreme Court, they are held by a bank or other third party). But what is it about the DNA loci that merits similar protection? The state’s claim is not that an arrest justifies every unrelated search. It is (or should be) that the custodial arrest justifies using identifying marks–whether they are within fingerprint impressions or DNA molecules–for identification of the person and then for speculative searching against the marks left at past and future unsolved crimes.

To be sure, a sensitive balancing of individual and public interests might lead to the conclusion that the latter goes too far. But the assumption in Mario W. seems to be that tokens of an individual’s identity are inherently “intimate personal information” that impose a “serious intrusion on … privacy interests.” Without a clearer and more convincing analysis of the actual privacy interests associated with the many things that mark us as individuals–DNA profiles, fingerprints, iris scans, even photographs–Mario W. raises more questions than it answers.

Notes

1. One can quibble with the term “seizure,” for the extraction of the cells in the inner surface of the cheek does not seem to be a seizure in the Fourth Amendment sense. Unlike keeping a person away from his home or luggage or stopping him, it is not a substantial interference with the individual’s use of his possessions or his person. It is, however, probably a search under Cupp v. Murphy, 412 U.S. 291 (1973) (physical intrusion under fingernail), Schmerber v. California, 384 U.S. 757 (1966) (physical intrusion with syringe), or United States v. Jones, No. 10-1259 (U.S. Jan. 23, 2012) (the GPS tracking case that applied a trespass-with-intent-to-acquire-information test for ascertaining a “search”).

2. But Caballes and Place also are distinguishable in that DNA loci are not contraband.)

3. How much, if any, other information the card contains is an interesting question.

4. I am oversimplifying. When profiles from putative close relatives are available, the loci can be used for kinship testing. For example, if the state has the profiles of a mother-father-child trio, it could determine whether they are in the specified biological relationship or whether, for example, someone else is the biological father. The reader is invited to make his own comparison between the strength of the privacy interest in the contents of all manner of containers of personal effects and records on the one hand, and the STR loci used for identification, on the other.

References

1. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. No. 4 (forthcoming Apr. 2013).

2. David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N. C. L. Rev. Addendum No. 1 (forthcoming Oct. 2012)

Postscript: Rereading the Mario W. opinion yet again, the following paragraph struck me:

�26 The State argues that once it has lawfully obtained the cell samples, the Fourth Amendment provides no greater bar to the processing of those samples and the extraction of the DNA profile than it does to the analysis of fingerprints. But the State’s reliance on the fingerprinting analogy here is misplaced. Once fingerprints are obtained, no further intrusion on the privacy of the individual is required before they can be used for investigative purposes. In this sense, the fingerprint is akin to a photograph or voice exemplar. But before DNA samples can be used by law enforcement, they must be physically processed and a DNA profile extracted. See Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 Cal. L. Rev. 721, 726-30 (2007).”

This is a distinction without a difference. First, in both fingerprinting and DNA analysis, a sample (an exemplar) must be collected from an arrestee. Elsewhere, the opinion describes the intrusion on the individual in this step with unusual clarity. Second, with both fingerprinting and DNA profiling, the physical sample must be examined “before [the] samples can be used by law enforcement.”

The fingerprint information lies in minutiae that must be studied by eye or by computer to extract useful data. The DNA information lies in particular loci that must be characterized by chemical reactions and computers to extract useful data. What matters is not the physics or the chemistry, but the transformation into identifying information. If extracting this information is a separate search for DNA, then extracting the identifying information also is a separate search for fingerprints. If this “second search” requires a warrant for DNA, it requires it for fingerprints.

Cross-posted to Forensic Science, Statistics, and the Law

Can King Reign? A Less-than-regal Edict in Maryland

Maryland’s highest court is its Court of Appeals. Three days ago, in King v. State [1], this court became the first supreme court of any state to hold that taking a DNA sample from an arrestee is unconstitutional. But you would not know this from the court’s opinion.

Instead, the Maryland court purports to follow “the Minnesota Supreme Court in C.T.L.” Considering that the Minnesota Supreme Court did not decide C.T.L. and that it has yet to consider the routine practice of taking DNA prior to arrest [2], this is no small feat.

The majority opinion in King, penned by Judge Glenn T. Harrell, Jr., contains additional gaffes. It refers to Judge Marjorie Rendell of the U.S. Court of Appeals for the Third Circuit as a man, and it asserts that “Fourth Amendment analyses” should be “more stringent” than “a First Amendment ‘rational basis’ review” — whatever that may mean.

Of course, these infelicities do not mean that the opinion is wrong — although it is long on description and short on analysis. The balancing of state and individual interests that is pivotal to the opinion is less than lucid. We can get a sense of the court’s approach from its discussion of the individual interests that the opinion seeks to protect. To begin with, the Maryland court gives more weight than most courts do to the interest in being free from an unwanted but painless and relatively minor intrusion into one’s body. Judge Harrell writes that DNA

is collected by swabbing the interior of a cheek (or blood draw or otherwise obtained biological material). While the physical intrusion of a buccal swab is deemed minimal, it remains distinct from a fingerprint. We must consider that “[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.” Schmerber, 384 U.S. at 770.

The puzzle here is that, if the physical intrusion is indeed minimal, why is it of “great importance” to have a “detached . . . determination” in the form of a judicial warrant? It cannot be the peculiar notion that laboratory analysis to produce an identifying profile is a separate search requiring a warrant. If that were so, the laboratory analysis of “abandoned” DNA of a suspect also would require a warrant. This might be a reasonable position–but the King court does not retreat from State v. Williamson, 993 A.2d 626 (Md. 2010). There, the police recovered and then analyzed DNA from a drinking cup given to a suspect at a police station, and the Maryland Court Appeals flatly rejected the separate-search argument. Furthermore, if the “physical invasion” aspect of the DNA collection were of such great importance, the state could avoid the impact of King by changing the method for collecting the DNA. Instead of a buccal swab, the arrestee could be asked to place his fingers on a sticky pad to which some cells would adhere.

The interest that actually seems to be driving the opinion is not that the arrestee is compelled open his mouth so that some cells can be scraped from the inside of his cheek. It is, in the King court’s words, the possibility that “the vast genetic treasure map that remains in the DNA sample retained by the State” will be read or released in violation of state law. But the opinion utterly fails to address whether the state’s possession of that unread map (the physical sample kept under lock and key) unreasonably interferes with a defined privacy interest. And even if it does, could not Maryland acquire the identification profiles — data that are nothing like “[a] person’s entire genetic makeup and history” — and then destroy the physical sample to satisfy the court’s oddly applied balancing test?

Despite its problems, both superficial and fundamental, the King opinion is not devoid of all redeeming value. For example, the court correctly distinguishes between the use of a biometric identifier for identification and its use of it for intelligence purposes. But the opinion sheds no new light on the constitutional issue and casts some grotesque shadows. Readers seeking a deeper analysis will have to look elsewhere [3].

References

  1. King v. State, No. 68, 2012 WL 1392636 (Md. Apr. 24, 2012)
  2. In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006)
  3. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, University of Pennsylvania Journal of Constitutional Law, Vol. 15 (in press)

Postscript

Alan Lazerow pointed out that the court’s opinion does not have the superficial flaws that caused my jaw to drop and pen to move. Thankfully, the opinion as now posted on Maryland’s website and in Westlaw has these blemishes removed..

Cross-posted to the Forensic Science, Statistics and the Law.

The Consequences of Mistakenly Acquiring a DNA Sample for a Law Enforcement Databank

Should a state be permitted to convict a rapist who is caught because his DNA is placed in a database in violation of the state’s DNA databank statute? In People v. Robinson, 224 P.3d 55 (Cal. 2010), the California Supreme Court upheld the sexual assault convictions of a man whose DNA was taken by correctional officials who mistakenly thought that the state’s DNA database statute applied to the misdemeanor for which he was convicted. This search thus violated the state law but not the U.S. Constitution, which permits DNA sampling from those convicted of some (if not all) misdemeanor offenses. Because the state database law did not prescribe the exclusion of evidence at trial as a remedy, the California court could have upheld the convictions without discussing the scope of the Fourth Amendment exclusionary rule.

Yet, the Robinson court described a second ground for its action — the “good faith” exception to the Fourth Amendment exclusionary rule announced in United States v. Leon, 468 U.S. 897 (1984). The facts of Leon were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to other forms of police reliance on facts or other information supplied by officials. Just this month, in United States v. Davis, No. 09-11328 (U.S. June 16, 2011), the Court refused to apply the exclusionary rule to a search that conformed to circuit court precedent at the time, even though the Supreme Court devised a different rule two years later. More to the point, in Herring v. United States, 555 U. S. 135 (2009), a police officer, pursuing a grudge against a suspect, arrested and searched him and his truck on the basis of a false and negligent report from a clerk in another county of an outstanding arrest warrant. The Court held that this “attenuated negligence” did not warrant the application of the exclusionary rule.

In an essay published last month, I argue that the Robinson court exceeded the boundaries of the good-faith exception by applying it to a nonattenuated negligent mistake. The essay, “Unraveling the Exclusionary Rule: From Leon to Herring to Robinson–And Back?,” 58 UCLA L. Rev. Disc. 207 (2011), is at http://uclalawreview.org/?p=1719.

DNA Database Trawls and the Definition of a Search in Boroian v. Mueller

In August 2010, the U.S. Court of Appeals for the First Circuit disposed of an argument about the constitutionality of DNA databases that it previously had consciously and conspicuously avoided a few years earlier. In Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010), this court finally held that the government can keep a convicted offender’s DNA profile in a law enforcement database even after he has paid his metaphorical debt to society.

This outcome is hardly surprising. Long-lasting, collateral consequences of convictions have become commonplace (Pinard 2010), and continuing to trawl for matches to unsolved crimes after a convicted offender is no longer subject to confinement or supervision adds significantly to the power of DNA databases. Nevertheless, the reasoning that the court used to reach this result has come under attack in recent writing, and the court itself tried to reign in the implications of the rationale it employed.

The Case and the Prior First Circuit Law

Martin Boroian was convicted in 2004 of making a false statement to a federal official. For this crime, he spent a year on probation. During this year, he provided (under protest) a blood sample as required by a federal law mandating the inclusion of DNA profiles in the FBI’s national DNA database. In 2008, Boroian sought to have his DNA profile expunged and his DNA sample destroyed. His complaint, filed in federal district court, alleged that the retention and analysis of his DNA profile and sample–after completion of his probation term and without reasonable suspicion of any new criminal activity–violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.

The district court dismissed the complaint. The court decided that even if the facts listed in the complaint all were true, the government was acting constitutionally. First, the court concluded that the government’s retention and periodic accessing of his lawfully obtained DNA profile was not a new search within the meaning of the Fourth Amendment. Second, the court held that although a new analysis of the DNA sample could constitute a separate search under the Fourth Amendment, Boroian’s complaint contained no allegations of a present or imminent analysis of the sample. In short, the district court determined that the government can hold on to the physical evidence Boroian was required to provide as long as it wanted to, and it could use the information it had extracted from the evidence–Boroian’s DNA identification profile–over and over, in checking profiles from new crime-scene DNA samples against Boroian’s (and those of the millions of convicted offenders with profiles in the national database).

The latter proposition seems difficult to deny. On appeal, Boroian did not–and realistically, could not–argue that the law requiring him to provide the sample for the database was unconstitutional. Like every other appellate court to the address this question, the First Circuit has held that the compulsory collection of DNA samples from convicted offenders for computer searchable DNA databases is a reasonable search and seizure. In United States v. Weikert, 504 F.3d 1, 14 (1st Cir. 2007), the First Circuit wrote that:

After careful consideration, we conclude that the government’s important interests in monitoring and rehabilitating supervised releasees, solving crimes, and exonerating innocent individuals outweigh Weikert’s privacy interests, given his status as a supervised releasee, the relatively minimal inconvenience occasioned by a blood draw, and the coding of genetic information that, by statute, may be used only for purposes of identification.

Because the court’s balancing relied heavily on the value of the DNA database in producing “cold hits” to solve crimes, Weikert surely upheld, as constitutionally reasonable, not merely the compelled collection of DNA from offenders while on probation or release, but also the analysis of the samples to extract the numerical DNA profiles, the recording of these profiles in the national database, and the trawls of this database of the DNA profiles extracted from these samples. These trawls, after all, are the raison d’etre of a computer-searchable database.

The only colorable argument against continuing to trawl the database with Boroian’s profile in it was that the balance of interests had shifted in his favor after he had served his sentence. Indeed, the Weikert court had left this question wide open, writing that it was

withholding judgment on whether retaining a former conditional releasee’s DNA profile in CODIS passes constitutional muster. The distinction in status between a current and a former offender clearly translates to a change in the privacy interests at stake. A former conditional releasee’s increased expectation of privacy warrants a separate balancing of that privacy interest against the government’s interest in retaining his profile in CODIS.

504 F.3d at 16.

Boroian’s Reasoning

The court in Boroian, however, refused to undertake this “separate balancing.” Rather than weigh the two sets of interests to decide whether an offender could be forced to surrender his DNA for database trawls after the completion of the sentence, the court now reasoned that the trawls coming at this later stage were not even “searches” within the meaning of the Fourth Amendment. Analogizing DNA identification profiles to “fingerprints or mugshots [that] are routinely retained by the government after . . . sentences are complete,” 616 F.3d at 67, the First Circuit wrote that “we join the other courts to have addressed the issue in holding that the government’s retention and matching of Boroian’s profile against other profiles in CODIS does not violate an expectation of privacy that society is prepared to recognize as reasonable, and thus does not constitute a separate search under the Fourth Amendment.” Id. at 67-68 (footnote omitted). In this way, Boroian repudiated Weikert‘s “dicta that the government’s retention and periodic matching of a lawfully obtained profile after the offender had completed his term of supervised release would require a rebalancing of the relevant government and privacy interests to determine the reasonableness of the search.” Id. at 68 n.6.

In general, rejecting the suggestion that every trawl of information in a database is a separate search that requires independent justification is sensible. Once the government lawfully acquires the information, the marginal invasion of privacy that comes from using it later is minimal. Consequently, the government should not be forced to use the data once, then forget it. Suppose that in executing a valid warrant permitting the seizure of a stolen personal computer with serial number C2011A from a warehouse, government agents observe and record the serial numbers C2013A and C2013C on other computers. A week later, they receive a report of a theft of the PC with serial number C2013A. The warrant did not authorize the agents to compare the numbers a week later, but one of them remembers the number (or looks up the record of the first search), thus linking the owner of the warehouse to the second crime. What meritorious privacy interest can the owner assert to stop the government from checking for a match in the serial numbers? Treating the simple trawl of the stored information as not subject to the strictures of the Fourth Amendment–because it is not a “search”–seems appropriate.

Yet, this mode of analysis creates a puzzle. By invoking a broad no-search doctrine, Boroian avoids even asking the fundamental, prior question of whether the government’s interests justify a system that trawls for DNA matches not only during the sentencing period but indefinitely thereafter. The opinion seems to say that as long as it is clear that the acquisition and use of the offender’s DNA profile for a limited time is permissible, trawls for all time also are permissible.

A recent law review article takes issue with the generally accepted view that “[l]awful collection simply ends the analysis: anything further is fair play.” (Murphy 2010, 1334). But the free reuse of legitimately acquired information is deeply entrenched in established Fourth Amendment doctrine. It follows from the nature of the interests the Fourth Amendment protects. For example, an individual whose DNA profile is in the database–a database inhabitant, so to speak–might well be concerned that later trawls will harm him by exposing him as the perpetrator of an unsolved crime. A later trawl that had this outcome certainly would harm the database inhabitant, but it would not infringe a legitimate interest, let alone an interest that the Fourth Amendment respects. Under “conventional doctrine,” id., the Fourth Amendment does not protect information. It only protects individuals against oppressive methods of acquiring that information. One can decry this “this singular attention on acquisition,” id., but trying to undo it through the Fourth Amendment would be a major task. It harkens back to the days of Boyd v. United States, 116 U.S. 616 (1886), in which the Supreme Court held that a court order for the production at trial of certain papers was a search and seizure, not because of the manner in which the government was acquiring the information, but because of the information itself.

References

Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010).

Boyd v. United States, 116 U.S. 616 (1886),

Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L. Rev. 291, 3334 (2010).

Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 NYU L. Rev. 457 (2010).

United States v. Weikert, 504 F.3d 1, 14 (1st Cir. 2007).

New York to Use Partial DNA Database Matches that Implicate Relatives

The New York Times reported today that New York’s Commission on Forensic Science has approved allowing “forensic investigators working for the State Police to share information about partial matches with local law enforcement agencies.” The idea is simple. If a crime-scene sample matches a profile in the database at most, but not all loci, the individual from the database is excluded — but his (or her) brother (or other close relative) is much more likely to be the source of the DNA than some random, unrelated individual. Thus, the near-miss in the database is an investigative clue. As ACLU staff (quoted in the article) point out, this procedure effectively expands the size of the database but makes it less accurate when it points to a relative in this indirect fashion.

In the old Science & Law Blog, I wrote (on May 6, 2008) about the Fourth Amendment implications of the practice:

My brother’s DNA: Near-miss DNA searching

California has adopted an aggressive policy toward near-miss DNA searching — something discussed in this blog before. The state is going to compare DNA profiles recovered from crime-scenes to those in its offender database (1) to see if there are any “cold hits” to convicted offenders and arrestees, and (2) to see if there are any almost-matching profiles that are likely to have come from a very close relative.

The first procedure has been upheld in case after case challenging its constitutionality (in the context of convicted offenders). Why would the second procedure be constitutionally defective? According to a Los Angeles Times article of April 26 on the California policy, some lawyers think it is an unreasonable search that might run afoul of the Fourth Amendment. The paper also quotes “Tania Simoncelli, science advisor to the American Civil Liberties Union,” as asserting that “The fact that my brother committed a crime doesn’t mean I should have to give up my privacy!”

This crie de coeur surely is sincere, and it may not be meant as a constitutional argument, but it is interesting to ask whether it supplies a plausible principle for applying the Fourth Amendment. Consider the following case: You have an identical twin brother. He robs a bank, is locked away in prison, and his DNA profile is put in an offender database. This can happen even though his DNA was not evidence in the bank robbery case and had nothing to do with that crime.

While your brother is out of circulation, you break into a house. cutting your hand on the glass of a window that you shattered to gain entry. A tiny bloodstain with your DNA on it is analyzed. The profile is compared to those in the database. It matches the one that is file perfectly — your brother’s — because identical twins have the same DNA sequences. But the police know that your brother was in prison when the house was burgled. They scratch their heads until they realize that he might have an identical twin with identical DNA.

So the police investigate you and find plenty of other evidence against you. Now you are facing trial. You move to exclude evidence that your DNA matches that in the bloodstain on the ground that this discovery is the result of an unreasonable search, arguing that “the fact that my brother committed a crime doesn’t mean I should have to give up my privacy!” Not only that, you contend that the rest of the evidence must be dismissed because all of it is the fruit of this illegal search.

I do not see how anyone (who agrees that convicted-offender databases that include bank robbers are constitutional) can argue that this search infringes the Fourth Amendment. It is too bad that you and your brother share the same DNA profile, but the police have not forced you to surrender your DNA, and you have no right to stop them from checking your brother’s DNA to see if he might be responsible. By checking him, they learn something about you. You might not like it, but let’s face it, this probably is not the first time that your brother got you into trouble.

Of course, the California policy is not limited to identical twins. Furthermore, it involves partial matches and less complete information. All that I have tried to show is that the slogan that “the fact that my brother committed a crime doesn’t mean I should have to give up my privacy!” does not settle any constitutional question. It states the conclusion of what must be a rather complex argument about (1) the privacy of information that identifies a class of individuals and (2) the power of the state to investigate one individual on the basis of information it legitimately obtains from another individual.

* * *

Another argument against near-miss searching is that it is discriminatory. From the old blog (April 9, 2007):

Near-miss DNA Searching

“Familial searching” is back in the news.  60 Minutes had a segment on it last week called “A Not So Perfect Match: How Near-DNA Matches Can Incriminate Relatives of Criminals,” and the LA Times ran an editorial by UCLA Professor Jennifer Mnookin entitled “The Problem with Expanding DNA Searches: They Could Locate Not Just Convicted Criminals But Also Relatives — Violating Privacy.”

The phrase “familial searching” is slightly misleading. As Mnookin notes, when a DNA sample from a crime scene is almost — but not quite — a match to a particular individual in the convicted-offender database, it could well come from a full sibling or a parent or child. As one moves farther out on the family tree, however, it is difficult to distinguish relatives from unrelated individuals with the DNA types listed in the database.

Although one cannot expect too much from short editorials and TV clips, it may be worth noting and commenting on some of the arguments against near-miss searching floated in these media. The major argument offered on the 60 Minutes show was that looking for leads to relatives is “genetic surveillance.” Of course, this is more of a slogan than an argument. Calling the practice “genetic” or “surveillance” does not make it wrong. People would prefer not to come to the attention of the authorities, but what is the underlying right that following these leads violates? Or is the argument not about rights, but policy? Is the unarticulated premise that the police should not have a way of tracking the whereabouts of large numbers of people who are not (yet) known to have done anything wrong? Perhaps, but don’t people become suspects for all kinds of reasons beyond their control all the time?

Professor Mnookin formulates the point somewhat differently when she writes that “[p]ut plainly, it is discriminatory. If I have the bad luck to have a close relative who has been convicted of a violent crime, authorities could find me using familial search techniques. If my neighbor, who has the good fortune to lack felonious relatives, left a biological sample at a crime scene, the DNA database would not offer any information that could lead to her.” The “discrimination” here is that people whose parents, children, or siblings are convicted criminals can be caught. But why is this under-inclusiveness such a serious concern? By this logic, wouldn’t it be equally discriminatory to seek or follow up on leads by interrogating friends of a criminal? To paraphrase the editorial, “If I have the bad luck to have a friend who is willing to talk to the police, authorities could find me using interrogation techniques. If my neighbor, who has the good fortune to lack loose-lipped friends, committed the same crime, the interrogation would not offer any information that could lead to her.” “Discrimination” that arises from “bad luck” is not generally a concern. Something else must be doing the work here.

Another less-than-obvious claim cast in terms of “discrimination” or “fairness” is that “those people who just happen to be related to criminals have not given up their privacy rights as a consequence of their actions. To use a search technique that targets them simply because of who their relatives are is simply not fair.” But it is not apparent that there is any fundamental “privacy right” to be free from becoming the target of an investigation because of one’s associations with individuals who come to the attention of the police. Suppose that I commit a crime all by myself but I have a nosy neighbor who shadowed me. He gets caught committing a totally unrelated crime, and he bargains for a lower sentence by offering to rat on me. Would we say that “those people like me, who just happen to be living next to nosy criminals have not given up their privacy rights as a consequence of their actions. To use a search technique that targets them simply because of who their neighbors are is simply not fair.”?

A more troubling point is that near-miss searching will have a disparate racial and economic impact because racial minorities and less affluent individuals are overrepresented among convicted offenders. Is the disparate impact is acceptable for the convicts but not for their closest relatives? Mnookin points out that in upholding the constitutionality of convicted-offender databases, courts have suggested that offenders lose privacy rights by virtue of their offenses. I am skeptical of this “forfeiture of rights” argument as the ground for upholding convicted-offender databases, but it is a common intuition, and many courts have relied on it to overcome the Fourth Amendment claims of convicted offenders. Notice, however, that the right be free from bodily invasion asserted in those cases has no application to near-miss searching. Under current Fourth Amendment doctrine, no “search” occurs in looking at validly obtained DNA profiles to determine if there are any near matches. That said, the disparate-impact concern remains, at least as a policy matter. The inequity exists with or without near-miss searching, but more people are affected if near-miss searching is performed.

The editorial tosses in a practical argument: “the broader the parameters for partial match searches, the more likely false positives become.” But what is a “false positive” here? It is not a false conviction. If a close relative did not deposit the crime-scene DNA, then it is improbable that DNA testing of this individual will establish a total match. Testing a falsely identified relative thus will exculpate him. This is not to denigrate the individual’s interest in not becoming a “person of interest” to the authorities, even if the interest is temporary, but such false leads are also a concern for the police because they waste time and resources. If the parameters are set so wide as to include large numbers of false leads, then the police will find the technique frustrating, and it will not be used very often. Furthermore, even if the “parameters” were grossly overinclusive, producing many bad near-matches, most of the false leads could be detected in the laboratory with the existing samples from the crime and the nearly matching convicted offenders. If a brother, son, or father of an actual rapist is in the offender database, then he will have the same Y chromosome as the rapist. If the samples do not match at loci on the Y chromosome, then the near-miss offender can be crossed off the list. In this way, false leads to close relatives of an individual in the database can be largely eliminated by testing at Y-STRs or Y-SNPs in rape cases (or others with male offenders).

Professor Mnookin concludes that “as a matter of fairness, it ought to be all or nothing.” Does this mean that (1) either everybody should be in the law-enforcement identification databases or nobody should be, or rather that (2) either everybody should be in the law-enforcement identification databases or only convicted offenders should be? Whichever is intended, she is right about one thing — near-miss searching is a step in the direction of a more universal database.

References

Jeremy W. Peters, New Rule Allows Use of Partial DNA Matches, N.Y. Times, Jan. 25, 2010

DNA on Arrest: The Score is Tied

Twelve years ago, Louisiana adopted a law mandating that “[a] person who is arrested for a felony sex offense or other specified offense . . . shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.” Today, the movement to acquire DNA from individuals not convicted of a crime and to check it against state and national databases of DNA profiles from unsolved crimes is snowballing. There now are 21 states with similar laws. In this year alone, seven states — a full one-third of the total — enacted such laws. (Williams 2009).

These laws have had a placid childhood, with surprisingly few challenges to their constitutionality. This period of calm is coming to an end, as conflicting opinions on the reasonableness of these searches under the Fourth Amendment emerge. Within the next few years, it seems likely that, as Kansas State Representative Pat Colloton (R), who authored the bill that initiated her state’s DNA sampling program predicted, “this issue will go to the United States Supreme Court.” (Gramlich 2006).

This posting presents a scoreboard on the litigation and scholarly commentary to date. It is based on preliminary research. If any players or contests have been omitted, I hope that readers will correct those omissions by leaving a comment. The law review articles listed in the table do not include ones arguing that convicted-offenders databases are unconstitutional. These authors would reach the same conclusion for a database that includes arrestees, but since the lower courts have resoundingly rejected their analyses, little would be gained by keeping track of them here.

The tables are descriptive rather than critical. They simply make the point that as yet there is no consensus on the constitutionality of taking DNA samples during a custodial arrest with the intention of running database searches (in the absence of a warrant and probable cause to believe that the search will produce a hit in the database). Later, I shall be commenting on some of the more superficial, if not silly, arguments that are surfacing in the pending cases.

Table 1. Caselaw on the Constitutionality of Statutes
Mandating DNA Sampling on Arrest (Nov. 28, 2009)

Appellate: Highest Courts (1-0)
● Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007) (state arrestee law upheld under unspecified balancing test and analogy to fingerprinting as a booking procedure)
Appellate: Intermediate Courts (0-1)
● In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006) (state arrestee law struck down as per se unreasonable without probable cause and a warrant)
● Related case: Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009) (an arrest does not justify DNA sampling without an applicable statute)
Federal District Courts (1-1)
● United States v. Pool, CR. No. S-09-0015 EJG, 2009 WL 2152029 (E.D.Cal. July 15, 2009)
(federal arrestee law upheld under “totality of circumstances” balancing test) (oral argument before the Ninth Circuit Court of Appeals in docket no. 09-10303 scheduled for the second week of December)
● United States v. Mitchell, No. 2:09cr105, 2009 U.S. Dist. LEXIS 103575 (W.D. Pa. Nov. 6, 2009) (federal law held unenforceable as per se unreasonable)
● Pending: Haskell v. Brown, 09-cv-04779-CRB (N.D. Cal. 2009) (challenge to California law adopted by proposition, no clear standard articulated by either party) (hearing on preliminary injunction scheduled for December 4)

Table 2. Law Review Articles and Notes on the Constitutionality
of Statutes Mandating DNA Sampling on Arrest (Nov. 28, 2009)

Faculty: (1-1)
● D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol’y 455-508 (2001) (a statute with sufficient protections of private, nonidentifying information is constitutional under the special needs exception)
● Tracey Maclin, Is Obtaining an Arrestee’s DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?, 34 J.L. Med. & Ethics 165, 178-82 (2006) (predicting that the Supreme Court will uphold taking DNA from arrestees under a balancing test but that it should reject the practice as per se unreasonable)
● D. H. Kaye, Who Needs Special Needs? On the Constitutionality of Collecting DNA and Other Biometric Data from Arrestees, 34 J.L. Med. & Ethics 188 (2006) (proposing a “biometric information exception” to the warrant requirement)
Student (2-2)
● Martha L. Lawson, Note, Personal Does Not Always Equal “Private”: The Constitutionality of Requiring DNA Samples from Convicted Felons and Arrestees, 9 Wm. & Mary Bill Rts. J. 645 (2001) (the government’s interest in mandatory testing of all those arrested outweighs individuals’ privacy interests)
● Reneé A. Germaine, Comment, “You Have the Right to Remain Silent. . . You Have No Right to Your DNA” Louisiana’s DNA Detection of Sexual and Violent Offender’s Act: An Impermissible Infringement on Fourth Amendment Search and Seizure, 22 J. Marshall J. Computer & Info. L. 759 (2004) (unconstitutional under balancing test other than special needs)
● Kimberly A. Polanco, Note,  Constitutional Law-The Fourth Amendment Challenge to Dna Sampling of Arrestees Pursuant to the Justice for All Act of 2004: a Proposed Modification to the Traditional Fourth Amendment Test of Reasonableness, 27 U. Ark. Little Rock L. Rev. 483 (2005) (constitutional under a balancing test)
● John D. Biancamano, Note, Arresting DNA: The Evolving Nature of Dna Collection Statutes and Their Fourth Amendment Justifications, 70 Ohio St. L.J. 619 (2009) (unconstitutional under special needs and totality of the circumstances tests)
● Related note: Jacqueline K. S. Lew, Note, The Next Step in DNA Databank Expansion? The Constitutionality of DNA Sampling of Former Arrestees, 57 Hastings L.J. 199 (2005) (unconstitutional as applied to “former arrestees”)

References

John Gramlich, States Collecting DNA from Arrestees, July 27, 2006, http://www.stateline.org/live/details/story?contentId=129960, accessed Nov. 28, 2009

Richard Williams, Taking DNA Samples from Arrestees, 17 Legisbrief No. 40, Oct. 2009, http://www.ncsl.org/?TabId=18715, accessed November 28, 2009

15 La . Rev. Stat. § 609(A)(1) (“A person who is arrested for a felony sex offense or other specified offense, including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses on or after September 1, 1999, shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.”), derived from Act No. 737, approved July 9, 1997, and amended in 2003 (adding the phrase “including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses”) and 2009.